New phase of canker suit begins

Judge rejects state effort to limit award

March 21, 2008|By David Fleshler Staff Writer

With millions of dollars in payments to Broward County homeowners at stake, a judge in a class-action suit over the citrus canker eradication program heard motions Thursday that could influence how much money ultimately is awarded.

Broward Circuit Judge Ronald Rothschild ruled last month that the Florida Department of Agriculture had to compensate about 70,000 homeowners for the destruction of 133,000 citrus trees. A 12-member jury will be picked next month to decide how much the homeowners should be paid.

Wes Parsons, attorney for the Department of Agriculture, argued that the cost of cutting down the citrus trees should be deducted from any compensation payments, citing a state law that requires the department to charge for the removal of plants infected with "plant pests or noxious weeds."

"This is kind of unique," said Nancy LaVista, attorney for the homeowners. "They want the homeowners to have to pay for the costs of the destruction of the homeowners' trees."

The judge swiftly shot down the idea, saying he was relying on simple common sense rather than sophisticated legal reasoning.

"These trees have been removed under the citrus canker eradication program, and I'm hard-pressed at this point for the department to say we are taking the trees and you're going to pay for this," he said.

Robert Gilbert, lead attorney for the homeowners, said in an interview that jurors will hear testimony from homeowners about their trees, a tree appraiser and people in the nursery business about what it would cost to replace various kinds and sizes of citrus trees. In December a tree appraiser testified that he valued a 7-foot lemon tree at $454, a 12-foot orange tree at $643 and a 15-foot grapefruit tree at $1,060.

"The only issue that's at stake is how much will homeowners be awarded in compensation for trees destroyed under the program," he said.

He said the state could face a bill of up to $85 million for Broward trees alone.

Homeowners who lost trees to the program are automatically included in the lawsuit and don't have to do anything to receive a compensation payment, if the jury approves them. The state has records and addresses of all trees destroyed.

During the eradication program, the department sent homeowners a $100 Wal-Mart voucher for the first tree destroyed and a $55 cash payment for each subsequent tree. Many homeowners regarded these payments as token compensation.

But the judge said he would allow the jury to decide whether to deduct these amounts from payments to homeowners. The state has records of which homeowners received compensation and how much of the $100 Wal-Mart voucher they used as well as records of owners, addresses and numbers and types of trees for each tree destroyed.

With so many Broward residents standing to gain from the trial, finding impartial jurors will take time. They can't be people whose trees were destroyed in the eradication program and they can't be state employees. The judge said he will call up potential jurors in groups of 50.

After the disease was discovered in 1995 near Miami International Airport, the Florida Department of Agriculture began a campaign to eradicate it. At the height of the fight, the department was cutting down all trees within 1,900 feet of infected ones, a measure that angered many homeowners.

The program ended early in 2006, when the U.S. Department of Agricultural withdrew its financial support, saying the hurricanes of 2004 and 2005 had spread the disease beyond the possibility of eradicating it.

Five class-action cases have been filed in different counties. In addition to losing the Broward case, the Department of Agriculture lost the one in Palm Beach County, and a jury is to be impaneled there in September to decide compensation. The other cases have not gone to trial.

David Fleshler can be reached at dfleshler@sun-sentinel.com or 954-356-4535.

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